THE TRANSFER NO. 14. THE TEASER. (Circuit Court of Appeals, Second Circuit. December 8, 1903.) No. 42. 1. COLLISION-TUG AND MEETING TOW-INATTENTION TO LIGHTS AND SIGNALS. A tug, with a car float on each side, passing up East river in the channel between New York and Blackwell's Island, in the early morning, held in fault for a collision with a barge coming down in tow on a hawser, which occurred on the New York side of the channel, on the ground that she was on the wrong side of the channel, and was negligent in failing to give proper attention to the lights and signals of the approaching vessels, or to promptly and decisively change her course to starboard as soon as they were seen coming nearly head on. 2. SAME CONTRIBUTORY FAULT. Under the rule that, where one vessel was primarily in fault for a collision, clear proof of contributory fault by the other is required, a tug which was passing down East river with the ebb tide at half speed, having a barge in tow on a hawser, held not in fault for a collision between her tow and a meeting tug having a car float on each side because she did not sooner stop and reverse, although the meeting tug failed to change her course or answer signals, where in all other respects she was properly and carefully navigated, and it appeared that, in the state of the tide, there was danger of her propeller being fouled by the hawser if she stopped, and also that the barge would be less manageable. 3. SAME-BARGE IN Tow. A barge in tow held not in fault for a sheer which brought her in collision with the tow of a meeting tug, where she kept her course until after collision between the two tugs, and after her own tug had stopped, leaving her exposed to the effect of the tide. Appeals from the District Court of the United States for the Southern District of New York. This cause comes here upon appeal from a final decree of the District Court, Southern District of New York, condemning each of the tugs Teaser and Transfer No. 14 to pay one-half of libelant's damages resulting from a collision between its barge David Wallace in tow of the Teaser and a car float in tow of the Transfer No. 14 on March 25, 1901. For opinion below, see 118 Fed. 81. Chas. C. Burlingham, for the Teaser. Le Roy S. Gove, for appellees. Before LACOMBE, TOWNSEND, and HAZEL, Circuit Judges. PER CURIAM. As found by the district judge: "The barge was in tow, on a hawser of about 45 or 50 fathoms in length, of the steam tug Teaser, and bound from Newport, R. I., to Hoboken, N. J., through the channel between Blackwell's Island and New York. The Transfer No. 14, with a float on each side, was proceeding through the channel from Jersey City to Harlem. The collision happened about 5 o'clock in the morning. It was before dawn, while the vessel's lights were burning, and the navigation governed thereby. The tide was ebb, and the weather clear. ** There is no material conflict in the testimony as to the tugs having been substantially in a head and head position to each other for some time 127 F.-20 as they approached, and it was the duty of each to port her helm and pass the other on the port side. The distance between Blackwell's Island and the New York shore varies from 750 to 900 feet, and, allowing a reasonable margin for navigation away from the shore, there is an average navigable channel in the vicinity of the collision, somewhere in the neighborhood of SixtyFirst street, of about 600 feet. Of this space, No. 14, with her floats, occupied about 100 feet. The Teaser was about 25 feet wide, and the barge about 36 feet wide." We agree with the district judge in the proposition that "the ascertainment of the part of the channel in which the collision took place is determinative of the question whether the tugs performed their respective duties to keep to the right," and in the finding that it took place on the New York side of the channel, and near the shore. We therefore concur in the conclusion that "No. 14 was navigating so near the New York shore that, considering the space she and her tow were occupying in the channel, a collision was imminent unless she changed her course promptly, and decidedly to the starboard when the Teaser and tow were some distance away. This she did not do, * * and was primarily in fault for the collision." The port corner of the port float of No. 14 came in contact with the lower guard on the port bow of the Teaser-a glancing blow, doing little damage-and thereafter the starboard stem of the barge collided with the starboard corner of the starboard float of No. 14. From this statement it is obvious that the barge sheered a considerable distance to the eastward, and it was contended on behalf of No. 14 that the collision was due to such sheer. Just how the sheer came about is not quite plain, but we are of the opinion that those in charge. of the barge were attentive to their steering and properly managed her helm down to the very moment of collision between the tugs, and that her erratic movements were produced either by that collision, or by some sudden movements of the Teaser in endeavoring to avoid it. The failure of No. 14 to port promptly and decidedly made it necessary for the Teaser to change direction more quickly than she otherwise would, and at least to stop her engine; thus slackening the towing hawser, and rendering the barge less controllable in the ebb tide. We concur therefore with the district judge in holding libelant's barge free from fault. The Teaser was held to have fulfilled her duty in porting, in going to the right of the channel, and as to her lights and signals. The testimony of her witnesses as to her navigation was credited by the district judge who heard them, and we see no reason why it should be discredited. She saw No. 14 and her floats when nearly a mile away. She repeatedly blew single whistles, interspersed with alarm whistles when they were not responded to either by whistle or by change of course. She ported promptly, then straightened out, then ported again, and straightened finally when quite as close to the New York shore as it was safe to go. She was condemned for not stopping and backing sooner. In The City of Augusta and The Chicago, 125 Fed. 712, we held that, where the primary fault was attributable to one vessel, clear proof of contributing negligence by the other vessel should be presented, before the latter could be held to bear an equal share of the consequent damage. The Teaser was going at half speed, which, plus the tide, made her progress over the ground about six miles an hour, and she did not stop and back till she was in the immediate vicinity of No. 14-so close to her, indeed, that, had she been unincumbered, her failure to stop and back sooner might fairly he held to be a fault. Her excuse for holding on was that she expected until the last moment that No. 14 would swing to starboard, in accordance with her plain duty, and that any stoppage or even slackening of speed by the Teaser would be likely to foul her propeller with the towing hawser, and would bring her tow, incapable of checking speed down on the ebb tide, into the upgoing flotilla. It turned out that, when she finally did stop and back, the hawser did not foul her propeller; but, in our opinion, such fouling was a contingency fairly to be expected, and the action of her navigators in deciding to avoid that risk was an error in judgment under conditions of uncertainty which had been produced by the faulty navigation of No. 14. Moreover, we are by no means satisfied that this collision would have been avoided had she stopped and backed sooner. It is quite probable that by so doing the Teaser would herself have escaped collision with the flotilla. It was not that collision which caused the damage; but, under existing conditions, it seems to us that an earlier stoppage would have resulted only in bringing the barge down upon the port instead of the starboard car float. We conclude that No. 14 was solely in fault for the collision. The decree is reversed, with costs of this appeal to the Teaser against the No. 14, and cause is remanded to the District Court, with instructions to decree in favor of libelant against No. 14, with interest and costs. DUNWORTH v. GRAND TRUNK WESTERN RY. CO. No. 959. 1. CONTRIBUTORY NEGLIGENCE-TRIAL-DIRECTION OF VERDICT. Where, in an action for death resulting from defendant's alleged negligence, it followed as a necessary conclusion and as a matter of law, from the facts disclosed, that deceased was guilty of contributory negligence, and that there could be no recovery under any proper view of the facts, it was the duty of the trial court to direct a verdict for the defendant. RAILROADS-CROSSINGS-INJURIES TO PEDESTRIANS. 2. SAME Where a street car conductor left his car at a railroad crossing, and went on the track to see if it was clear, and on seeing a train approaching on one of the tracks stepped back onto another, and stood there waiting for the train to pass, when he was struck and killed by a train approaching from the rear on such track, which he could have seen if he had looked, and there was unobstructed space of 10 feet between the crossing gates and the first track in which he could have stood in safety, he was guilty of contributory negligence as a matter of law. 8. SAME-NEGLIGENCE OF DEFENDANT-STATUTORY REGULATIONS-NONCOMPLI ANCE. Where deceased, who was killed while standing on a railroad crossing, was guilty of contributory negligence as a matter of law, the fact that defendant was at fault for noncompliance with statutory regulations did not preclude it from relying on the defense of plaintiff's contributory negligence. SAME-PROXIMATE CAUSE. Where, in an action for death of plaintiff's intestate at a railroad crossing, it did not appear that decedent's presence on the track was observed by the locomotive engineer, or that after seeing him, and after knowledge that he was unobservant of his danger, there was time to avoid the catastrophe, defendant was not liable, notwithstanding plaintiff's contributory negligence, on the ground that by the exercise of ordinary care defendant might have avoided the consequences of decedent's negligence. Grosscup, Circuit Judge, dissenting. In Error to the Circuit Court of the United States for the Northern District of Illinois. This action is brought by the plaintiff to recover damages sustained by reason of the death of her intestate, caused, as alleged, by the wrongful acts of the defendant at a street crossing of its railway. The negligence charged was that the bell of a locomotive engine approaching and crossing South Halsted street was not rung or its whistle sounded, that no headlight was exhibited, and that the gates were not lowered. There was a plea of the general issue. At the trial, upon the conclusion of the evidence for the plaintiff, the court directed the jury to render a verdict for the defendant, for which supposed error the cause is brought here for review. The two tracks of the defendant's railway running east and west intersect Halsted street, in the city of Chicago, at right angles, and for a long distance the tracks are straight. The north track is used by west-bound trains; the south track by east-bound trains. Ten feet south of the south rail of the south track are gates, and from eight to ten feet south of the gates, and on the west side of the street, is a small station. From this station the view to the west along the tracks is unobstructed, the space between the south rail and the gates and the station being unoccupied. At the west line of the street there is a switch track which curves to the south, and then to the west, running for some distance parallel to the south track, about on a line with the station house. The street car line of the Chicago City Railway Company located upon Halsted street crosses these railway tracks. The deceased was a conductor in the service of that company. The car upon which he served was on a trip north, and had come to a stop south of the railway gates, to allow the conductor to go forward, according to his customary duty, to ascertain if the way was clear and to signal the car when the way should be clear. The evidence is contradictory whether the gates were lowered before Dunworth went upon the crossing. As he passed the gates a west-bound freight train was approaching Halsted street from the east upon the north track, and was some 300 feet away. Dunworth went to the north track, and, in the language of a witness for the plaintiff, "when the conductor saw the gates coming down and the train approaching he came back to the south track and stood on the track." He took a position between the rails of the south track, where he remained for from two to four minutes, looking northeast and north, watching the freight train as it approached and was passing. At this time an engine coming from the west approached on the south track at a speed of eight miles an hour, backing up, its bell not being rung or its whistle sounded, and without a headlight on the tender of the engine, and struck and killed Dunworth. This was before the freight train had passed. The time was December 4, 1901, at about 7 o'clock in the evening. The night was dark, but the ground was covered with snow to a depth of two inches, making "it look quite light." The locality was also lighted by an electric are light suspended over the center of Halsted street. James Hamilton Lewis, for plaintiff in error. Before JENKINS, GROSSCUP, and BAKER, Circuit Judges. JENKINS, Circuit Judge (after stating the facts as above). If the facts, or the inferences to be drawn from them, with respect to con tributory negligence, be doubtful, the case is one for the jury. But if from the facts disclosed the conclusion follows as a matter of law that there can be no recovery in any proper view of the facts, it is the duty of the trial court to direct a verdict. Schofield v. Railway Company, 114 U. S. 615, 5 Sup. Ct. 1125, 29 L. Ed. 224; Railway Company v. Converse, 139 U. S. 469, 11 Sup. Ct. 569, 35 L. Ed. 213; Railway Company v. Ives, 144 U. S. 408, 417, 12 Sup. Ct. 679, 36 L. Ed. 485.; Gardner v. Michigan Central Railroad Company, 150 U. S. 349, 361, 14 Sup. Ct. 140, 37 L. Ed. 1107; Warner v. Baltimore & Ohio Railway Company, 168 U. S. 339, 348, 18 Sup. Ct. 68, 42 L. Ed. 491; District of Columbia v. Moulton, 182 U. S. 576, 579, 21 Sup. Ct. 840, 45 L. Ed. 1237. The facts in the case at bar are without contention, and were disclosed by the evidence of the plaintiff. It was the duty of the deceased to go upon the crossing to see if a train was approaching from either direction, and to signal the motorman if and when the way was clear for the crossing of the street car. But the performance of this duty did not absolve him from the duty of care with respect to his own safety. He was there to look for danger. That was his duty, not only with respect to the service in which he was engaged, but with respect to himself in the performance of that duty. These duties were concurrent. After the gates were lowered th street car could not cross until after the passage of the freight train. The deceased had then no duty to perform with respect to the street car until the train had passed and the gates had been raised. Until that should occur, duty to himself, if not to the railway_company,, required that he should stand in a place of safety. There were ten feet in width of unobstructed space between the south rail of the south track and the gates, where he could have stood in absolute safety and in full view of the situation. Instead, he took his position between the rails of the south track with his back or side to the west, from which direction alone danger upon that track was to be apprehended, and, without looking to the west, watched the coming and passing of the west bound train upon the north track. This is abundantly proven by the concurrent testimony for the plaintiff. Those speaking to the question, and who were watching him as he stood there, saw him look but in the one direction. Such conduct can be characterized only as reckless. Without necessity he deliberately placed himself in a situation of known danger. In the open space he would have been immune from danger, and with equal facilities for seeing in both directions. He had no right to stand upon the track. Taking the risk, the consequences should not be imposed upon another. Railroad Company v. Houston, 95 U. S. 697, 24 L. Ed. 542; Schofield v. Railway Company, 114 U. S. 615, 5 Sup. Ct. 1125, 29 L. Ed. 224; Northern Pacific Railroad Company v. Freeman, 174 U. S. 379, 19 Sup. Ct. 763, 43 L. Ed. 1014. It is urged that, because the defendant was in fault for noncompliance with statutory regulations, contributory negligence of the party injured is unavailing as a defense, and this is said to be stated. with absoluteness in Deserant v. Cerillos Coal Railroad Company, 178 U. S. 409, 20 Sup. Ct. 967, 44 L. Ed. 1127. It was there ruled that the |